DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 5 August 2026 is acknowledged. The traversal is on the ground(s) that Sandmann et al does not teach the special technical feature of a cassava plant expressing a modified AKT2 (note the claims have been amended to be limited to cassava in response to the restriction requirement. This is not found persuasive, because the special technical feature of an AKT2 being expressed in cassava is disclosed by Li et al. See anticipation rejection below. Note that the scope of claim 1 does not require that the AKT2 is modified due to the recitation of “homolog thereof.”
The requirement is still deemed proper and is therefore made FINAL.
Claims 15-29 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5 August 2026.
Claim Status
Claims 1-7, 9-29 are pending.
Claims 15-29 are withdrawn from consideration.
Claims 1-7, 9-14 are examined on the merits.
Claim Rejections - 35 USC § 112
Indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-6, 9-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 “a modified POTASSIUM TRANSPORTER 2 (AKT2) protein,” and then recites, “or homolog thereof” at the end of the claim. These recitations raise two issues. First, the recitation “modified” is just indicating that it is different but fails to provide any point of reference. This is problematic, because it seems that the wild-type corn AKT2 could be considered a modified version of the AtAKT2 protein, for example. Even if the claims were interpreted more narrowly, the recitation of “or homolog thereof” is unclear if the homolog must be modified from any wild-type AKT2 proteins. As such, the metes and bounds of the claims cannot be determined. Claims 2-6, 9-14 are rejected for depending from an indefinite claim and failing to recite additional limitations that would render the claim definite.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 7, and 9-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Li et al (US20150315605 A1).
Li et al disclose SEQ ID NO:66542 which encodes the corn AKT2 also known as ZMK2, which is a homolog of AtAKT2 (see alignment below) and MeAKT2. They disclose transgenic plants comprising recombinant DNA constructs comprising a promoter operably linked to a DNA segment encoding SEQ ID NO:66542 and methods of making said transgenic plants having improved characteristics including drought tolerance (claims 1-4, 6-11). They contemplate that the transgenic plants can be of species including cassava (paragraph 155). The improved characteristics should naturally flow from expression of any AKT2 homolog (as recited in claims 9-14). If this is not the case, the claims lack full enablement and description. Accordingly, claims 1, 7, and 9-14 are rejected as being anticipated by Li et al.
US-14-628-469-65542
(NOTE: this sequence has 2 duplicates in the database searched.
See complete list at the end of this report)
Sequence 65542, US/14628469
GENERAL INFORMATION
APPLICANT: EI DuPont de Nemours
APPLICANT: Li, Bailin
APPLICANT: Thatcher, Shawn
TITLE OF INVENTION: NOVEL TRANSCRIPTS AND USES THEREOF FOR IMPROVEMENT OF AGRONOMIC
TITLE OF INVENTION: CHARACTERISTICS IN CROP PLANTS
FILE REFERENCE: BB2384USNP
CURRENT APPLICATION NUMBER: US/14/628,469
CURRENT FILING DATE: 2015-02-23
PRIOR APPLICATION NUMBER: US 61/942,846
PRIOR FILING DATE: 2014-02-21
NUMBER OF SEQ ID NOS: 72254
SEQ ID NO 65542
LENGTH: 699
TYPE: PRT
ORGANISM: Zea Mays
Query Match 46.3%; Score 1924.5; Length 699;
Best Local Similarity 54.5%;
Matches 378; Conservative 105; Mismatches 153; Indels 57; Gaps 5;
Qy 157 MDVASTIPFDAIGYLITGTSTLNITCNLLGLLRFWRLRRVKHLFTRLEKDIRYNYFWIRC 216
||||||||| : ||||| | ::||:|| ||||||| |||||||||::|||||
Db 1 MDVASTIPFQGLAYLITGEVRENAVYSMLGVLRLWRLRRVKQFFTRLEKDIRFSYFWIRS 60
Qy 217 FRLLSVTLFLVHCAGCSYYLIADRYPHQGKTWTDA-IPNFTETSLSIRYIAAIYWSITTM 275
||::||||||||||| ||||||||| : ||| | |||| : || ||||::||||||||
Db 61 ARLVAVTLFLVHCAGCLYYLIADRYPDRQKTWIGAVIPNFRQASLRIRYISSIYWSITTM 120
Qy 276 TTVGYGDLHASNTIEMVFITVYMLFNLGLTAYLIGNMTNLVVEGTRRTMEFRNNIEAASN 335
|||||||||| | :||:| ||||||||||||||||||||||||||||||||:| |||:
Db 121 TTVGYGDLHAQNNVEMIFNIFYMLFNLGLTAYLIGNMTNLVVEGTRRTMEFRNSIRAASS 180
Qy 336 FVNRNRLPPRLKDQILAYMCLRFKAESLNQQHLIDQLPKSIYKSICQHLFLPSVEKVYLF 395
|| || |||||| ||||||||:|:||||||| |:||||||| ||||:|||:| |: ||||
Db 181 FVGRNHLPPRLKQQILAYMCLKFRAESLNQQQLMDQLPKSICKSICEHLFVPVVKDVYLF 240
Qy 396 KGVSREILLLLVSKMKAEYIPPREDVIMQNEAPDDVYIIVSGEVEIIDSEMERESVLGTL 455
:|||||:|| ||:||| |||||:||||:|||||||||::||||||:| : | | ||
Db 241 RGVSREMLLSLVTKMKPEYIPPKEDVIVQNEAPDDVYVVVSGEVEVILFDGIYEQVQATL 300
Qy 456 RCGDIFGEVGALCCRPQSYTFQTKSLSQLLRLKTSFLIETMQIKQQDNATMLKNFLQHHK 515
|||||| || | |::||:|::|||||||| : | | || : :|: ::||||:|
Db 301 GARDIFGEVSALSDRAQAFTFRTRTLSQLLRLKQATLKEAMQSRPEDSVVVIKNFLKHQV 360
Qy 516 KLSNLDIGDLKAQQNGENTDVVPPNIASNLIAVVTTGNAALLDELLKAKLSPDITDSKGK 575
:: : : || ||: | :|:: | ||: ||::||:| |: |:||:
Db 361 EMHGMKVEDLLGDNTGEHDD------DANVLTVAAMGNSGLLEDLLRAGKDADVGDAKGR 414
Qy 576 TPLHVAASRGYEDCVLVLLKHGCNIHIRDVNGNSALWEAIISKHYEIFRILYHFAAISDP 635
| ||:|||:|||||||||||| ||::||| ||:|:| || : |:: | :|| | |:|
Db 415 TALHIAASKGYEDCVLVLLKHACNVNIRDAQGNTAMWNAIA AGHHKTFNLLYQFGRASNP 474
Qy 636 HIAGDLLCEAAKQNNVEVMKALLKQGLNVDTEDHHGVTALQVAMAEDQMDMVNLLATNGA 695
||::| ||:: :: :: ||| ||:||:||| | |||:||||| | | |||
Db 475 RAGGDVMCLAARRGHLGALQELLKLGLDVDSEDHDGATALRVAMAEGHADAARFLILNGA 534
Qy 696 DVVCVNTHNE--------------FTPLEKLRVVEEEE---------------------- 719
| : :: :| | :::: |
Db 535 SVDKASLDDDGSGSGSGSGAARLAMSPTELRELLQKRELGHSITIHDSPAVVPNGGSSGH 594
Qy 720 ------------EEERGRVSIYRGHPLERRERSCNEAGKLILLPPSLDDLKKIAGEKFGF 767
: |||:|:||| | | |||||| || :::: : | |||
Db 595 SRPGRLQSTSSDSQRWPRVSVYKGHPFLRNRTS--EAGKLINLPGTMEEFRAIVGEKLKV 652
Qy 768 DGSETMVTNEDGAEIDSIEVIRDNDKLYFVVNK 800
| : :: :::|||||||:||||||||: | :
Db 653 DAEKALIVSDEGAEIDSIDVIRDNDKLFMVTEE 685
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-7 and 9-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sonnewald et al 2020 (The Plant Journal 103: p. 1655-1665) and further in view of Gajdanowicz et al 2011 (PNAS 108:2, p. 864-869) and Elegba et al 2021 (Frontiers in Plant Science Plant Breeding 12: p. 1-12).
Sonnewald et al teach that cassava is an important staple crop in Sub-Saharan Africa and there is a working collective to improve yield potential with special focus on improved source-sink relations (Abstract). They teach that the “potassium battery that energizes phloem transport” is one of three identified potential targets for genetic improvement of storage root yield and they cite the work of Gajdanowicz et al 2011 (right column, p. 1658).
Sonnewald et al do not teach to transform an AKT2 into a plant.
Gajdanowicz et al teach expressing a modified, nonrectifying version of the AtAKT2 protein having S210N and S329N substitutions which results in increased growth rate as indicated by stalk/shoot height (Figure 2) which they go on to posit that AKT2 shifting to a nonrectifying mode is the means by which the “potassium battery” can be tapped to facilitate phloem (re)loading (Discussion, p. 867), which is a critically important process in moving photoassimilate/sucrose from source to sink tissue. Note that Gajdanowicz et al teach expressing AKT2 using either the AtSUC2 promoter or the native AtAKT2 promoter; both of these support strong expression of protein in phloem.
Elegba et al teach that methods of cassava transformation were established in the art.
At the time of filing, it would have been prima facie obvious for a person of ordinary skill in the art to follow the suggestion of Sonnewald et al try to alter process by which the potassium battery energizes phloem transport in cassava. Given that Sonnewald et al directly cite Gajdanowicz et al, a person or ordinary skill in the art would have been motivated to express the AtAKT2-S210N-S329N protein in the phloem of cassava, especially since Gajdanowicz et al teach that this transgene can lead to improved stalk/shoot growth rate. Through the expression of this nonrectifying modified the AtAKT2-S210N-S329N protein, the potassium battery will be tapped and phloem transport will be more efficient as the dependency of the transport process on ATP will be lessened. This potentially will translate to greater yield from cassava as less of the sugar made via photosynthesis will need to be consumed to transport sugar to the storage root from the green tissues.
Accordingly, claims 1-7 and 9-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sonnewald et al further in view of Gajdanowicz et al and Elegba et al.
Conclusion
No claims are allowed.
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/MATTHEW R KEOGH/Primary Examiner, Art Unit 1663
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